WHEN GUNS THREATEN THE PUBLIC SPHERE: A NEW ACCOUNT OF PUBLIC SAFETY REGULATION UNDER HELLER
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Copyright 2021 by Joseph Blocher & Reva B. Siegel Printed in U.S.A.
Vol. 116, No. 1
WHEN GUNS THREATEN THE PUBLIC SPHERE:
A NEW ACCOUNT OF PUBLIC SAFETY
REGULATION UNDER HELLER
Joseph Blocher & Reva B. Siegel
ABSTRACT—Government regulates guns, it is widely assumed, because of
the death and injuries guns can inflict. This standard account is radically
incomplete—and in ways that dramatically skew constitutional analysis of
gun rights. As we show in an account of the armed protesters who invaded
the Michigan legislature in 2020, guns can be used not only to injure but also
to intimidate. The government must regulate guns to prevent physical
injuries and weapons threats in order to protect public safety and the public
sphere on which a constitutional democracy depends.
For centuries the Anglo-American common law has regulated weapons
not only to keep members of the polity free from physical harm, but also to
enable government to protect their liberties against weapons threats and to
preserve public peace and order. We show that this regulatory tradition
grounds the understanding of the Second Amendment set forth in District of
Columbia v. Heller, where Justice Antonin Scalia specifically invokes it as
a basis for reasoning about government’s authority to regulate the right
Heller recognized.
Today, a growing number of judges and Justices are ready to expand
gun rights beyond Heller’s paradigmatic scene: a law-abiding citizen in his
home defending his family from a criminal invader. But expanding gun
rights beyond the home and into the public sphere presents questions
concerning valued liberties and activities of other law-abiding citizens.
Americans are increasingly wielding guns in public spaces, roused by
persons they politically oppose or public decisions with which they disagree.
This changing paradigm of gun use has been enabled by changes in the law
and practice of public carry. As courts consider whether and how to extend
constitutional protection to these changed practices of public carry, it is
crucial that they adhere to the portions of Justice Scalia’s Heller decision that
recognize government’s “longstanding” interest in regulating weapons in
public places.
We show how government’s interest in protecting public safety has
evolved with changing forms of constitutional community and of weapons
threats. And we show how this more robust understanding of public safety
139NORTHWESTERN UNIVERSITY LAW REVIEW
bears on a variety of weapons regulations both inside and outside of courts—
in constitutional litigation, in enacting legislation, and in ensuring the
evenhanded enforcement of gun laws. Recognizing that government
regulates guns to prevent social as well as physical harms is a critical first
step in building a constitutional democracy where citizens have equal claims
to security and to the exercise of liberties, whether or not they are armed and
however they may differ by race, sex, or viewpoint.
AUTHORS—Joseph Blocher is the Lanty L. Smith ’67 Professor of Law,
Duke Law School; Reva B. Siegel is the Nicholas deB. Katzenbach Professor
of Law, Yale Law School. For comments on the draft, we thank Laurie
Benton, Jacob Charles, Saul Cornell, Joey Fishkin, Abbe Gluck, Genevieve
Lakier, Bill Marshall, Darrell Miller, Melissa Murray, Robert Post, Eric
Ruben, Ganesh Sitaraman, Nelson Tebbe, Adam Winkler, and participants
in the Northwestern University Law Review Symposium and a faculty
workshop at Yale Law School. For research help, we thank Duncan Hosie,
Dylan Jarrett, Spurthi Jonnalagadda, Danny Li, and Matt Post.
INTRODUCTION ............................................................................................................ 140
I. GUN THREATS AND THE BODY POLITIC ................................................................ 146
A. What Happened in Michigan ...................................................................... 148
B. “No One Has Ever Been Harmed” ............................................................. 154
C. The Threat to Public Safety Was, and Is, the Harm .................................... 160
II. GOVERNMENT’S CONSTITUTIONAL AND COMMON LAW AUTHORITY TO
ENFORCE PUBLIC SAFETY .................................................................................... 163
A. Preserving the Peace: Historical Antecedents of Gun Regulation .............. 165
B. Heller .......................................................................................................... 172
C. Applying Heller ........................................................................................... 176
III. PROTECTING PUBLIC SAFETY INSIDE AND OUTSIDE THE COURTS .......................... 180
A. Adjudicating the Public Safety Interest ....................................................... 182
B. Legislating Public Safety ............................................................................ 189
C. Enforcing Equal Liberties........................................................................... 193
CONCLUSION ............................................................................................................... 197
INTRODUCTION
Today, debate about regulating guns is overwhelmingly focused on the
terrible physical harms guns can inflict. Concern about preventing physical
harm shapes the ways that gun laws are written, enforced, and adjudicated.
In this Essay, we demonstrate, first, that government’s public safety interest
140116:139 (2021) When Guns Threaten the Public Sphere
in regulating weapons includes preventing social as well as physical harms.
Second, we demonstrate that District of Columbia v. Heller1 recognizes that
the government has a longstanding prerogative, rooted in the common law,
to prevent weapons threats and threats to public order, which enables it to
secure the equal freedom of all members of the public. Government can
regulate weapons to protect the public sphere on which a constitutional
democracy depends.
Government has a compelling interest in regulating weapons, not only
to deter injury, but also to promote the sense of security that enables
community2 and the exercise of all citizens’ liberties, whether or not they are
armed. Gun laws protect people’s freedom and confidence to participate in
every domain of our shared life, from attending school to shopping, going to
concerts, gathering for prayer, voting, assembling in peaceable debate,
counting electoral votes, and participating in the inauguration of a President.
The Court’s decision in Heller recognizes government’s ancient
common law authority to protect public safety against weapons threats. The
common law has always regulated arms to secure the public peace, and to
prevent terror as well as physical injury.3 What counts as terror and whose
terror counts have changed over time with evolving forms of sovereignty and
community, but there is continuity in the common law and constitutional
principle that government can regulate weapons to prevent some members
of the community from intimidating and terrorizing others. As we show,
Heller specifically recognizes this evolving body of common law when
reasoning about the roots, character, and scope of government’s authority to
regulate weapons in public life.4
Today, a growing number of judges and Justices are ready to expand
gun rights beyond Heller’s paradigmatic scene of a law-abiding citizen in his
home defending his family from a criminal invader. 5 But expanding gun
rights beyond the home and into the public sphere presents questions
concerning valued liberties and activities of those law-abiding citizens not
1 554 U.S. 570 (2008).
2 Reva B. Siegel & Joseph Blocher, Why Regulate Guns?, 48 J.L. MED. & ETHICS 11, 11 (2020).
3 See infra Part II.
4 See infra Section II.B.
5 We use the male pronoun purposefully here because the common law understood the household as
governed by a male head responsible for representing and providing for its members. See Susan P. Liebell,
Sensitive Places?: How Gender Unmasks the Myth of Originalism in District of Columbia v. Heller,
53 POLITY 207, 215 (2021) (“‘Self-defense in the home’ is unintelligible when detached from an essential
historical context: the husband as head of household under common law coverture.”). Justice Scalia’s
appeal to common law understandings to derive a right to defend home and family is an appeal to a
tradition that recognized men as having authority over women and other household members.
141NORTHWESTERN UNIVERSITY LAW REVIEW
wielding weapons. 6 Americans are increasingly wielding guns in public
spaces, roused by persons they politically oppose or public decisions with
which they disagree—as, for example, when gun owners carry weapons into
a legislature or to the site of a racial-justice protest.7 This changing paradigm
of gun use has been enabled by changes in the law and practice of public
carry: the spread of NRA-supported “right-to-carry” laws which have been
adopted by twenty-five states since 19918 and the growth of an open-carry
movement self-consciously seeking to shift norms about gun use.9 As courts
consider whether and how to extend constitutional protection to these
changes in the law and practice of public carry, it is crucial that they adhere
to the portions of Justice Scalia’s Heller decision that recognize
government’s “longstanding” interest in regulating weapons to protect
public safety—especially in public places.10
Yet, there are judges, legislators, and advocates—both inside and
outside of courts—who argue that the government’s interest in regulating
guns is limited to the prevention of physical harm. In post-Heller Second
Amendment cases, a small but growing number of judges have voted to
strike down gun laws on the ground that the government has failed to
produce sufficient evidence that the challenged laws reduce gun injuries and
deaths. 11 A similarly narrow understanding of the public safety interest
6 While this Essay was in its final round of edits, the Supreme Court granted certiorari in a case
challenging New York’s law restricting concealed-carry licenses to those who can show “proper cause.”
N.Y. State Rifle & Pistol Ass’n v. Bruen, No. 20-843 (U.S. Apr. 26, 2021), https://www.supremecourt.
gov/search.aspx?filename=/docket/docketfiles/html/public/20-843.html [https://perma.cc/V2JA-ME2E]
(establishing the question presented as “[w]hether the State’s denial of petitioner’s applications for
concealed-carry licenses for self-defense violated the Second Amendment”). A central question in the
case is whether and to what degree the Second Amendment has been incorporated under the Fourteenth
Amendment’s Due Process Clause to restrict states’ authority to regulate carrying guns outside the home.
7 For an examination of this trend, see infra notes 92–100, 286–287 and accompanying text. For an
examination of the armed invasion of the Michigan legislature in 2020, see infra Part I.
8 These laws require the issuance of concealed-carry permits to anyone not specifically prohibited
from possessing a gun. See “Concealed Carry | Right-to-Carry,” NRA-ILA, https://www.nraila.org/get-
the-facts/right-to-carry-and-concealed-carry/ [https://perma.cc/6PJG-LXLB] (celebrating this change
and saying that such laws “are essential because self-defense is a fundamental right”). A growing number
of states are doing away with permit requirements entirely—a policy change that supporters call
“constitutional carry.” See Adam Weinstein, Understanding ‘Constitutional Carry,’ the Gun-Rights
Movement Sweeping the Country, TRACE (Feb. 28, 2017), https://www.thetrace.org/2017/02/
constitutional-carry-gun-rights-movement-explained/ [https://perma.cc/U4UK-98US] (noting that ten
states adopted such a policy between 2010 and 2017).
9 See infra notes 282–286 and accompanying text (describing rise of open-carry movement).
10 District of Columbia v. Heller, 554 U.S. 570, 626, 627 n.26 (2008) (calling various “longstanding
prohibitions” “presumptively lawful”). For our discussion of these under examined passages of the Heller
opinion, see infra Sections II.B–II.C.
11 See infra Section III.A.
142116:139 (2021) When Guns Threaten the Public Sphere
appears in legislatures. 12 Too often, lawmakers frame their task around
violence prevention, not public safety; some argue that preventing violence
is the only valid basis for laws restricting public carry and other forms of gun
use.
In this Essay, we show that this “physical-harm-only” conception of
public safety is deeply at odds with the common law tradition from which
Heller draws its reasoning about the government’s prerogative to regulate
weapons. Reading the common law and the Constitution together, we show
how the government interest in regulating arms to promote public safety
extends beyond injury prevention to protecting the constitutional order and
building a community in which citizens have an equal claim to security and
to the exercise of liberties, whether or not they are armed, and however they
differ by sex, race, or political viewpoint. Acting in the interest of public
safety, government may regulate weapons to protect the body politic.
Understanding that government’s public safety interest protects the
exercise of liberties as well as physical survival can guide judgments about
litigation, legislation, and the enforcement of gun laws. Recognizing that the
way government secures public safety structures community, we are in a
different position to understand the growing concern that selective
enforcement of gun laws inscribes unequal membership and chills the
exercise of rights.13 We can ask a series of critical questions: Are gun laws
underenforced in ways that privilege the security claims of armed members
of the community over others? Are gun laws selectively enforced in ways
that allow some members of the community to bear arms in ways that others
are not? In our constitutional democracy, public safety includes an interest
in evenhanded enforcement of gun laws so that some members of the
community—whether identified by sex, race, or political viewpoint—are not
allowed to use weapons to dominate or threaten others.14 These questions
disappear from view when we think about gun regulation solely in terms of
physical harm.
We begin in Part I by reconstructing the story of the armed protest that
shut down the Michigan legislature in the spring of 2020. We have chosen
this episode to begin our account because it exemplifies an increasingly
familiar form of gun use that was scarcely heard of at the time of the Court’s
12 See infra Section III.B.
13 See infra Section III.C (describing concerns about the selective enforcement of gun laws in the
protest context).
14 Citizens and government officials can assert a public safety interest in evenhanded enforcement of
gun laws under the Second Amendment in ways that may appeal to First and Fourteenth Amendment
values of viewpoint neutrality and equal protection even in circumstances where a court would not find
an independent judicially enforceable violation of those constitutional guarantees.
143NORTHWESTERN UNIVERSITY LAW REVIEW
2008 decision in Heller and diverges in important particulars from the
paradigmatic scene of criminal home invasion on which Heller focuses. It is
now increasingly common for massed groups of heavily armed gun owners
to engage in open carry, invading public spaces occupied by unarmed
members of the community, as happened in Michigan. 15 Examining this
episode, in which persons wielded guns in public spaces without inflicting
physical injury on others, illustrates why government has a public safety
interest in regulating guns to preserve the peace and to protect against
weapons threats and intimidation, as well as to prevent physical injury.
In Part II, we show that this conception of public safety has ancient
roots in the common law, and we demonstrate that Heller draws on this
common law tradition in the portions of the decision that recognize
government’s interest in regulating weapons. We go on to show how this
reading of Heller bears on disputes over the constitutionality of restrictions
on public carry and matters in the two dominant modes of applying Heller—
the so-called “two-step” framework and originalist methods drawing on text,
history, and tradition. In Part III, we invoke this understanding of the
Constitution to respond to gun-rights advocates who assert, in courts and in
politics, the limiting principle that government may regulate guns only to
prevent physical harm. In cases challenging gun laws’ constitutionality
under Heller, judges demand evidence that the laws prevent physical harm.
And in legislative arenas, advocates assert that preventing physical harm is
the only reason for limiting public carry. As importantly, we show that
focusing on physical harm obscures important questions about the
evenhanded enforcement of gun laws. The enforcement of gun laws helps
define and shape a constitutional democracy, whether it reinforces
hierarchies or attests to the equal liberties of community members.
As we were completing this Essay, the nation was transfixed by an
assault on the body politic, one physical expression of which was the
seditious invasion of the Capitol building by an armed mob.16 While there
15 See infra notes 92–100, 281–283 and accompanying text (documenting when these practices
emerged).
16 Because of stricter gun regulations in the District of Columbia, the rioters mobbing the Capitol on
January 6, 2021 did not openly carry guns to the same extent as protesters did in Lansing, but reports
suggest that many of the invaders carried concealed guns. See Jane Lytvynenko & Molly Hensley-Clancy,
The Rioters Who Took Over the Capitol Have Been Planning Online in the Open for Weeks, BUZZFEED
NEWS (Jan. 6, 2021, 5:38 PM), https://www.buzzfeednews.com/article/janelytvynenko/trump-rioters-
planned-online [https://perma.cc/A6CQ-FHRT] (“Hundreds of extremists’ posts discussed bringing
firearms in violation of Washington, DC, law. Nevertheless, people displayed weapons that they had
brought with them. ‘All this bullshit about not bringing guns to D.C. needs to stop,’ read one post from
Tuesday with more than 5,000 upvotes. ‘This is America. Fuck D.C. it’s in the Constitution. Bring your
goddamn guns.’”). Members of Congress reported exchange of fire in the Capitol chambers. See Paul
144116:139 (2021) When Guns Threaten the Public Sphere
has been violence in the Capitol before,17 the mob of January 6, 2021 was
unprecedented in size and purpose, shocking even as it followed a
recognizable social-mobilization script of the kind we describe playing out
in Michigan, including extensive online plotting for an attack on sites of
lawmaking and political life.18 Threats continued through the spring, leading
the U.S. government to deploy 25,000 National Guard troops in advance of
Bass, As Battle Raged, DeLauro Hit the Floor, NEW HAVEN INDEP. (Jan. 6, 2021, 10:12 PM),
https://www.newhavenindependent.org/index.php/archives/entry/as_battle_raged_delauro_hit_the_floor
[https://perma.cc/K9FZ-JQH2] (“‘Rioters broke the glass on the doors,’ [Representative] DeLauro
recounted. ‘Then they started to fire in. There was an exchange of gunfire.’”); Rebecca Traister, ‘It Was
No Accident’ Congresswoman Pramila Jayapal on Surviving the Siege, CUT (Jan. 8, 2021),
https://www.thecut.com/2021/01/pramila-jayapal-surviving-capitol-riots.html [https://perma.cc/3C9M-
N868] (interviewing Representative Pramila Jayapal about the guns, the shooting, and the rioters with zip
ties, and drawing comparisons to those arrested for planning to invade the Michigan legislature and take
officials hostage). At one point in the late afternoon when only thirteen people had been arrested, the
Washington, D.C. police chief reported recovering at least five weapons. Associated Press, 5 Weapons
Recovered, 13 Arrests at D.C. Protests, PBS NEWS HOUR (Jan. 6, 2021, 5:57 PM), https://www.pbs.
org/newshour/politics/5-weapons-recovered-13-arrests-at-d-c-protests [https://perma.cc/8N5L-B7AF].
In addition to recovering several pipe bombs and Molotov cocktails from the area, law enforcement
observed that some invaders had zip ties to be used as handcuffs and law enforcement was investigating
whether there was a plan to kidnap government officials as there was in Michigan. See Devlin Barrett,
Spencer S. Hsu & Matt Zapotosky, FBI Focuses on Whether Some Capitol Rioters Intended to Harm
Lawmakers or Take Hostages, WASH. POST (Jan. 8, 2021, 8:18 PM), https://www.washingtonpost.com/
national-security/capitol-riot-fbi-hostages/2021/01/08/df99ae5a-5202-11eb-83e3-322644d82356_story.
html [https://perma.cc/8CBK-95S6] (“Fresh in investigators’ minds is the group of men charged last year
in Michigan—self-styled militia members—who are accused of plotting to kidnap that state’s governor
and allegedly discussed storming the state Capitol and taking lawmakers hostage.”); Elaine Godfrey, It
Was Supposed to Be So Much Worse, ATLANTIC (Jan. 9, 2021), https://www.theatlantic.com/
politics/archive/2021/01/trump-rioters-wanted-more-violence-worse/617614/ [https://perma.cc/MM4H-
LFZ7] (noting online plans to kill Vice President Mike Pence and reporting the construction of a gallows
outside the Capitol). Pro-Trump protesters at the Georgia State Capitol that same day openly carried long
guns. See Emily Shapiro, Beyond DC: Protests Rock California, Utah, Michigan and More, ABC NEWS
(Jan. 7, 2021, 12:17 PM), https://abcnews.go.com/US/dc-protests-rock-california-utah-michigan/story?
id=75108241 [https://perma.cc/CCB3-4NKT].
17
See, e.g., Nora McGreevy, The History of Violent Attacks on the U.S. Capitol, SMITHSONIAN MAG.
(Jan. 8, 2021), https://www.smithsonianmag.com/smart-news/history-violent-attacks-capitol-
180976704180976704/ [https://perma.cc/M2H6-MK8X] (noting “assailants with a range of motives have
launched attacks on the [U.S. Capitol] with varying levels of success” throughout history). See generally
JOANNE B. FREEMAN, THE FIELD OF BLOOD: VIOLENCE IN CONGRESS AND THE ROAD TO CIVIL WAR 4–
6, 268–69 (2018) (documenting threats and acts of violence among congressmen in the decades before
the Civil War and reporting that before the war members came armed).
18
See Rebecca Boone, Armed Statehouse Protests Set Tone for US Capitol Insurgents, AP NEWS
(Jan. 7, 2021), https://apnews.com/article/election-2020-coronavirus-pandemic-oregon-elections-idaho-
688fc8894f44992487bb6ee45e9abd77 [https://perma.cc/ZP8E-YN2G] (calling the state capitol protests
in Michigan, Idaho, and Oregon “dress rehearsals” for D.C.); id. (“‘There’s a direct relationship between
the growing paramilitary activity in the state Capitols, for sure, and what’s happening in D.C.,’ said Joe
Lowndes, a political science professor at the University of Oregon who researches race, conservatism and
social movements in politics. ‘They have the same kind of organizations and people involved.’”).
145NORTHWESTERN UNIVERSITY LAW REVIEW
the inauguration19 and then leading Congress to cancel a session on March 4
in response to a threat by a militia group to breach the Capitol in support of
President Trump’s return to power.20
Such actions have claimed lives and might ultimately claim more. But
they also threaten our collective lifes. The nation witnessed its leaders
crouched under benches in the Capitol unable to count the electoral vote. The
threats, assaults, and failures to evenhandedly police them transform the
public sphere on which a constitutional democracy depends. The current
escalating threat of violence grows out of, and exacerbates, political mistrust
and polarization. 21 Weapons caught in this cycle no longer threaten
individual lives only, if they ever did. Gun regulation becomes a defense of
the body politic.
I. GUN THREATS AND THE BODY POLITIC
We have grown accustomed to assessing the costs of gun violence
through reports of lives lost and persons injured. This mode of reasoning is
so deeply entrenched on all sides of the gun debate, in the academy, and in
popular media that it tends to obscure the many nonphysical but very
significant social harms that guns can inflict. Taking account of the ways that
gun use affects others’ freedoms and other valued activities requires paying
attention to the many—and evolving—modes of gun carry, including new
forms of gun carry in public spaces. To illustrate the externalities of gun use
and to enable examination of the government’s public safety interest in
19 Leo Shane III & Joe Gould, Biden Inaugurated Commander in Chief amid Heavy Military
Presence at Capitol, MIL. TIMES (Jan. 20, 2021), https://www.militarytimes.com/news/pentagon-
congress/2021/01/20/biden-inaugurated-commander-in-chief-amid-heavy-military-presence-at-capitol/
[https://perma.cc/HKK5-BT5F].
20
See Mark Katkov & Scott Neuman, House Cancels Thursday Session After Police Warn of Possible
Attack on Congress, NPR (Mar. 3, 2021, 12:27 PM), https://www.npr.org/2021/03/03/
973310942/capitol-police-warns-of-another-possible-right-wing-attack-on-congress [https://perma.cc/
VBZ9-B9DF]. In the wake of the Capitol attack, federal law enforcement mobilized in response to threats
against state capitols and other democratic institutions. See, e.g., Craig Timberg, Drew Harwell & Marissa
J. Lang, Capitol Siege Was Planned Online. Trump Supporters Now Planning the Next One., WASH. POST
(Jan. 9, 2021, 5:01 PM), https://www.washingtonpost.com/technology/2021/01/09/trump-twitter-
protests/ [https://perma.cc/PL3U-BMZF]; Tom Winter & Andrew Blankstein, FBI Memo Warns Law
Enforcement Across U.S. of Possible Armed Protests at 50 State Capitols, NBC NEWS (Jan. 11, 2021,
2:07 PM), https://www.nbcnews.com/politics/donald-trump/fbi-memo-warns-law-enforcement-across-
u-s-possible-armed-n1253750 [https://perma.cc/5G4R-SE7U].
21 Cf. Nathan P. Kalmoe & Lilliana Mason, Lethal Mass Partisanship: Prevalence, Correlates, &
Electoral Contingencies 37 (Jan. 2019) (unpublished manuscript), https://www.dannyhayes.org/uploads/
6/9/8/5/69858539/kalmoe___mason_ncapsa_2019_-_lethal_partisanship_-_final_lmedit.pdf [https://
perma.cc/3DZE-38YL] (finding that “[a]s more Americans embrace strong partisanship, the prevalence
of lethal partisanship is likely to grow”).
146116:139 (2021) When Guns Threaten the Public Sphere
regulating weapons under Heller, we focus on the armed masses that flooded
the Michigan legislature in the spring of 2020.
In the last several decades the law of public carry has evolved to allow
more forms of gun carry in shared public spaces with less licensing.22 Norms
governing the practice of public carry have evolved as well. It is simply more
common for people to openly carry weapons, including powerful classes of
weapons, in social settings where they would not have done so a decade ago.
Heavily armed and unarmed Americans comingle, not infrequently, in
shared spaces—Walmarts, 23 parking lots, 24 movie theaters, 25 and
restaurants26 across the country. Many of these scenes increasingly involve
forms of mass armed mobilization and intense political conflict.27 At least
since the Cliven Bundy ranching protests of 2014, 28 it is increasingly
22 See supra notes 8–9 and accompanying text.
23 Bill Chappell & Richard Gonzales, Rifle-Carrying Man Faces Terrorism Charge After Causing
Panic at Walmart in Missouri, NPR (Aug. 9, 2019, 11:08 AM), https://www.npr.org/2019/08/09/
749763786/rifle-carrying-man-arrested-after-causing-panic-at-walmart-in-missouri [https://perma.cc/
84LX-8ATG]; Austen Erblat, Shopper Charged with Pulling Gun in Walmart During Mask Dispute Posts
$15,000 Bond, SUN SENTINEL (July 24, 2020, 1:22 PM), https://www.sun-sentinel.com/news/crime/fl-
ne-walmart-gun-mask-arrested-charged-20200723-tma2ajnkoraodlhjcuqt2szcaa-story.html [https://
perma.cc/8BJR-XY8Z].
24 Jasmin Barmore & Sarah Rahal, Two Arraigned After Gun Drawn Over Bump at Orion Twp.
Chipotle, DETROIT NEWS (July 3, 2020, 6:13 PM), https://www.detroitnews.com/story/news/local/
oakland-county/2020/07/02/woman-pulls-gun-orion-township-michigan/5365854002/ [https://perma.cc/
AN8F-2GB3].
25 Evesham Township Police: Man Arrested After Bringing Loaded Gun into AMC Marlton 8, CBS
PHILLY (Nov. 21, 2019, 3:27 PM), https://philadelphia.cbslocal.com/2019/11/21/evesham-township-
police-dennix-alicea-loaded-gun-amc-marlton-8/ [https://perma.cc/KY8N-4RZQ].
26 Justin Wise, Armed Stay-at-Home Demonstrators Visit North Carolina Subway Shop, HILL (May
11, 2020, 8:38 AM), https://thehill.com/homenews/state-watch/497073-armed-demonstrators-protesting-
stay-at-home-order-visit-north-carolina [https://perma.cc/V6ZM-CZ85].
27 Mobilization of heavily armed masses was rare in modern American politics before the Cliven
Bundy protests in 2014 but as discussion in text demonstrates, it has become increasingly normalized
since then. Armed mobilizations do have antecedents, as the centennial of the Tulsa Race Riot vividly
illustrates. See, e.g., Yuliya Parshina-Kottas, Anjali Singhvi, Audra D.S. Burch, Troy Griggs, Mika
Gröndahl, Lingdong Huang, Tim Wallace, Jeremy White & Josh Williams, What the Tulsa Race
Massacre Destroyed, N.Y. TIMES (May 24, 2021),
https://www.nytimes.com/interactive/2021/05/24/us/tulsa-race-massacre.html (last visited June 18,
2021) (reporting mob shooting and aerial attack in 1921 that demolished a Black neighborhood in Tulsa
and left as many as 300 dead).
28 Modern protests appear to share roots with the mobilization of the 2013 open-carry movement.
See Katlyn E. DeBoer, Clash of the First and Second Amendments: Proposed Regulation of Armed
Protests, 45 HASTINGS CONST. L.Q. 333, 337–38 (2018); Michelle L. Norris, We Cannot Allow the
Normalization of Firearms at Protests to Continue, WASH. POST (May 6, 2020, 4:23 PM), https://www.
washingtonpost.com/opinions/firearms-at-protests-have-become-normalized-that-isnt-okay/2020/05/06/
19b9354e-8fc9-11ea-a0bc-4e9ad4866d21_story.html [https://perma.cc/7ZPX-VAT4] (“Advocates for
open-carry have been carrying handguns and rifles to department stores, Starbucks and state capitols since
2013 in an effort to normalize firearms in public.”); Team Trace, What You Need to Know About Open
147NORTHWESTERN UNIVERSITY LAW REVIEW
common for conservatives dressed in military-style garb to mass in protest
bearing assault rifles, as they did in Charlottesville in 2017, 29 “gun
sanctuary” rallies in 2019, 30 and racial-justice 31 and COVID-19-shutdown
protests in 2020.32
The scenes of protesters armed with assault rifles invading the
Michigan legislature may be extraordinary,33 but they illuminate questions
that guns present in “ordinary” cases as well.
A. What Happened in Michigan
On March 23, 2020, as the COVID-19 pandemic intensified,
Michigan’s Democratic Governor Gretchen Whitmer issued the first in a
series of executive orders forbidding residents to leave their homes unless
they needed to perform essential jobs, go grocery shopping, or go to the
Carry in America, TRACE (July 18, 2016), https://www.thetrace.org/2016/07/rise-of-open-carry-
explained [https://perma.cc/P8G7-R9B3]. It has also been connected to the revitalization of the patriot
militia movement in 2014. See Sam Jackson, “Nullification Through Armed Civil Disobedience”: A Case
Study of Strategic Framing in the Patriot/Militia Movement, 12 DYNAMICS ASYMMETRIC CONFLICT 90,
93 (2019); see also Daniel Horwitz, Open-Carry: Open-Conversation or Open-Threat, 15 FIRST AMEND.
L. REV. 96, 110–11 (2017) (referencing the Bundy demonstration as an example of an open-carry protest
where the opposing party was not frightened to argue that guns at protests should only be banned in
instances where the other side might be intimidated); Desni A. Scaife & Imani Robinson-McFarley, The
Hammond Guards and the Intersection of Race, Guns, and Patriotism, 8 C.R. LITIG. 12, 14 (2020)
(“Bundy’s criminal offenses were heralded as a ‘victory for all Americans.’”); Patrick J. Charles, The
Second Amendment in the Twenty-First Century: What Hath Heller Wrought?, 23 WM. & MARY BILL
RTS. J. 1143, 1160–61 (2015) (describing the political climate that gave rise to the Bundy standoff and
conservative support for the armed resistance).
29 Jon Sharman, Militia Force Armed with Assault Rifles Marches Through US Town Ahead of White
Nationalist Rally, INDEPENDENT (Aug. 12, 2017, 4:33 PM), https://www.independent.co.uk/news/
world/americas/militia-assault-rifles-unite-right-rally-charlottesville-virginia-white-supremacy-latest-a7
890081.html [https://perma.cc/69GT-9HV3].
30 Chelsea Parsons, Adam Skaggs & Erica Turret, Second Amendment Sanctuaries: A Legally
Dubious Protest Movement, 48 J.L. MED. & ETHICS 105, 105–06 (2020); Armed US Gun Rights Activists
Rally Against Proposed Virginia Gun Laws, REUTERS (Jan. 20, 2020, 10:05 AM),
https://www.cnbc.com/2020/01/20/thousands-of-armed-activists-gather-at-virginias-pro-gun-rally.html
[https://perma.cc/2PHE-H8WD].
31 See infra Section III.C.
32 Abigail Censky, Heavily Armed Protesters Gather Again at Michigan Capitol to Decry Stay-at-
Home Order, NPR (May 14, 2020, 10:01 AM), https://www.npr.org/2020/05/14/855918852/heavily-
armed-protesters-gather-again-at-michigans-capitol-denouncing-home-order [https://perma.cc/PE2M-
CA2N].
33 For scenes from inside the Michigan legislature, see Michelle Mark, Because of Michigan’s Gun
Laws, Protesters Were Allowed to Carry Their Assault Weapons into the State Capitol—but Not Their
Protest Signs, BUS. INSIDER (May 1, 2020, 5:41 PM), https://www.businessinsider.com/michigan-open-
carry-laws-legal-protesters-guns-at-state-capitol-2020-5 [https://perma.cc/8FJ3-3U7L].
148116:139 (2021) When Guns Threaten the Public Sphere
hospital. 34 The orders—which most Michiganders supported 35 —were
opposed by a group that assembled outside the legislature to protest, some
openly carrying firearms. 36 The morning after one such armed assembly,
President Trump tweeted “LIBERATE MICHIGAN!”37
One month later, on April 30, a crowd of roughly 1,000 people gathered
outside the Michigan capitol building to demonstrate against the lockdown
order. 38 Again, many openly carried AR-15s and other long guns. 39 Law
enforcement permitted some of the armed protesters—estimates range from
34 See Ken Haddad, Michigan Issues Stay-at-Home Order amid Coronavirus: Here’s What It Means,
CLICK ON DETROIT (Mar. 23, 2020, 2:42 PM), https://www.clickondetroit.com/news/2020/03/
23/michigan-issues-stay-at-home-order-amid-coronavirus-heres-what-it-means/ [https://perma.cc/8U4P-
W98X].
35 A poll surveying 600 Michigan residents between April 15 and 16 found that 57% of Michiganders
approved of Governor Whitmer’s handling of the crisis, compared to 37% who disapproved. Grace
Panetta, Despite High-Profile Protests, Michiganders Overwhelmingly Approve of Gov. Gretchen
Whitmer’s Handling of the Coronavirus, BUS. INSIDER (Apr. 20, 2020, 1:36 PM),
https://www.businessinsider.com/michiganders-approve-of-whitmer-on-coronavirus-despite-protests-
poll-2020-4 [https://perma.cc/Z5GE-MKXJ]. In mid-May, 86% of the state’s voters viewed the virus as
a threat to public health and 69% of Michigan voters agreed that the protests sent the wrong message,
including 55% of Republican-leaning voters. Todd Spangler, Poll: Michigan Voters Show Support for
Gov. Whitmer’s Handling of Coronavirus, DETROIT FREE PRESS (May 20, 2020, 3:40 PM),
https://www.freep.com/story/news/local/michigan/2020/05/20/republican-men-views-coronavirus/5227
671002/ [https://perma.cc/4QTC-CRND]. Only one group had a majority that believed the protests sent
the right message: Republican men, by a margin of 58%–30%. Id.
36 See Mike Householder & Ed White, ‘Not Prisoners’: Conservative Protesters Converge on
Michigan Capitol Over Governor’s Stay-Home Order, BALT. SUN (Apr. 15, 2020, 5:30 PM),
https://www.baltimoresun.com/coronavirus/ct-nw-lansing-michigan-state-capitol-protests-20200415-
xgojwxczjzhq7mtbyhifdbpcyy-story.html [https://perma.cc/L72J-3CKP] (featuring photos of protesters
in front of the state capitol toting arms).
37
Donald Trump (@realDonaldTrump), TWITTER (Apr. 17, 2020, 11:22 AM), https://twitter.com/
realDonaldTrump/status/1251169217531056130?s=20 (since the initial writing of this Essay, Donald
Trump’s Twitter account has been suspended and his prior Tweets may be unavailable); Katelyn Burns,
Armed Protesters Entered Michigan’s State Capitol During Rally Against Stay-at-Home Order, VOX
(Apr. 30, 2020, 9:04 PM), https://www.vox.com/policy-and-politics/2020/4/30/21243462/armed-
protesters-michigan-capitol-rally-stay-at-home-order [https://perma.cc/Q9E8-MRBY] (reporting
Trump’s tweet).
38
Craig Mauger, Protesters, Some Armed, Enter Michigan Capitol in Rally Against COVID-19
Limits, DETROIT NEWS (Apr. 30, 2020), https://www.detroitnews.com/story/news/local/michigan/2020/
04/30/protesters-gathering-outside-capitol-amid-covid-19-restrictions/3054911001/ [https://perma.cc/
AMF8-CFW9].
39 Id.; Josh K. Elliott, ‘Very Good People’: Trump Backs Armed Effort to Storm Michigan Capitol
over Coronavirus Rules, GLOBAL NEWS (May 1, 2020, 9:51 PM), https://globalnews.ca/news/6892207/
coronavirus-protest-michigan-donald-trump/ [https://perma.cc/XW7M-AF4V] (reporting and showing
video of people carrying AR-15-style long guns).
149NORTHWESTERN UNIVERSITY LAW REVIEW
dozens to hundreds—to enter the building while the legislature was debating
whether to extend the Governor’s emergency declaration.40
Michigan State Senator Dayna Polehanki described the scene in a tweet:
“Directly above me, men with rifles yelling at us. Some of my colleagues
who own bullet proof vests are wearing them. I have never appreciated our
Sergeants-at-Arms more than today. #mileg.”41 She later told CNN: “I am no
wimp. But what I saw at work yesterday at the Michigan State Capitol—
which was a bunch of men on the balcony carrying rifles—I’m not
embarrassed to say I was afraid.”42 She was not alone. Representative Sarah
Anthony recalled the armed protesters teeming through the legislature as
“one of the most unnerving feelings I’ve ever felt in my life . . . . You could
feel the floor rumbling. You could hear them yelling and screaming.”43
“It was intimidation,” said State Senator Jeremy Moss. “They were
heckling Democrats because they knew what our position was, but they were
also calling the Republicans spineless for delaying the action.”44 Republican
State Senate Majority Leader Mike Shirkey commended some of the
protesters but criticized others for using “intimidation and the threat of
physical harm to stir up fear and feed rancor.”45 Moss said his social media
feeds were flooded with questions from people across the country. “‘How
can this happen?’ they asked, according to Moss. ‘You can’t carry a gun into
a courthouse, you can’t even carry a phone into a courthouse, and yet we are
literally operating with people hovering over us with their weapons.’”46
Despite continuing partisan disagreement about the scope of the
Governor’s powers to order a lockdown, the events of April 30 inspired
widespread condemnation from across the political spectrum—with most
critics decrying “intimidation” as the problem. Shirkey condemned the
40 Burns, supra note 37. A state-police spokesperson explained that it is “legal in Michigan to carry
firearms as long as it’s done with lawful intent and the weapon is visible.” Dartunorro Clark, Hundreds
of Protesters, Some Carrying Guns in the State Capitol, Demonstrate Against Michigan’s Emergency
Measures, NBC NEWS (Apr. 30, 2020), https://www.nbcnews.com/politics/politics-news/hundreds-
protest-michigan-lawmakers-consider-extending-governors-emergency-powers-n1196886 [https://
perma.cc/A6GF-KLWD].
41 Dayna Polehanki (@SenPolehanki), TWITTER (Apr. 30, 2020, 12:38 PM), https://twitter.com/
SenPolehanki/status/1255899318210314241?s=20 [https://perma.cc/7BXR-N7CL].
42 Mark, supra note 33.
43 Lois Beckett, Armed Black Citizens Escort Michigan Lawmaker to Capitol After Volatile Rightwing
Protest, GUARDIAN (May 7, 2020), https://www.theguardian.com/us-news/2020/may/07/
michigan-lawmaker-armed-escort-rightwing-protest [https://perma.cc/C49C-WHNH].
44 Jonathan Oosting, Maybe It’s Time to Rethink Allowing Guns in Michigan Capitol, Officials Say,
BRIDGE MICH. (May 1, 2020), https://www.bridgemi.com/michigan-government/maybe-its-time-
rethink-allowing-guns-michigan-capitol-officials-say [https://perma.cc/32M7-8Y3l].
45 See Mike Shirkey (@SenMikeShirkey), TWITTER (May 1, 2020, 3:20 PM), https://twitter.com/
SenMikeShirkey/status/1256302431195070464?s=20 [https://perma.cc/A3RL-L8D5].
46 Oosting, supra note 44.
150116:139 (2021) When Guns Threaten the Public Sphere
“behavior and tactics” of some of the “so-called protestors.”47 “These folks
are thugs and their tactics are despicable. It is never OK to threaten the safety
or life of another person, elected or otherwise, period. The moment an
individual or group embraces the threat of physical violence to make a point
is the moment I stop listening.”48 Michigan Republican Party Chairwoman
Laura Cox issued a statement saying that “violence and intimidation have no
place in the American system and the Michigan Republican Party condemns
any individuals who are resorting to such tactics.” 49 Fox News host Sean
Hannity joined the chorus, announcing that “[n]o one should be attempting
to intimidate officials with a show of force.”50
In the wake of the armed protests, the State Capitol Commission (the
body responsible for maintaining the building and its grounds) met to decide
whether it could prohibit weapons in the statehouse, or whether doing so
would require a legislative act.51 But the commission’s virtual meeting was
inundated with threats. The commission’s vice-chairman warned that
commentators “were saying things like they knew where people lived”;
another commission member noted that “very vulgar” and “very racist”
comments were posted.52 Due to a concern for “public safety,” the committee
adjourned its meeting early—before public discussion.53
The threats directed at the commission were just the tip of the iceberg.
That same day, the Detroit Metro Times published an article revealing four
private Facebook groups (with a combined 400,000 members) “filled with
paranoid, sexist, and grammar-challenged rants, with members encouraging
47 See Shirkey, supra note 45.
48 Editorial, A Call for Civility Amidst Protests, BEAVER DAM DAILY CITIZEN (May 23, 2020),
[hereinafter A Call for Civility] https://www.wiscnews.com/bdc/opinion/editorial/editorial-a-call-for-
civility-amidst-protests/article_d7cbee17-4f55-574a-84d5-6e665998cd67.html [https://perma.cc/5452-
6GB2].
49 Steve Neavling, Michigan GOP Leaders Condemn Death Threats Against Whitmer, but Oppose
Banning Guns from Capitol, DETROIT METRO TIMES (May 12, 2020, 1:15 PM), https://www.metrotimes.
com/news-hits/archives/2020/05/12/michigan-gop-leaders-condemn-death-threats-against-whitmer-but-
oppose-banning-guns-from-capitol [https://perma.cc/AE3K-QUJD].
50 Politics Video Channel (@politvidchannel), TWITTER (May 5, 2020, 3:28 AM),
https://twitter.com/politvidchannel/status/1257572897763110912?s=20 [https://perma.cc/D4Y8-G8VL].
51 Matt Durr, Guns Can Be Banned at Michigan Capitol, Says AG Dana Nessel, MLIVE (May 8,
2020), https://www.mlive.com/public-interest/2020/05/guns-can-be-banned-at-michigan-capitol-says-
ag-dana-nessel.html [https://perma.cc/TV3P-CBTW] (reporting that Michigan’s Attorney General Dana
Nessel asserted that the commission could ban guns at the statehouse, observing “[p]ublic safety demands
no less, and a lawmaker’s desire to speak freely without fear of violence requires action be taken”); Craig
Mauger, Special Panel Formed to Study Michigan Capitol Gun Ban; Meeting Draws Threats, DETROIT
NEWS (May 11, 2020), https://www.detroitnews.com/story/news/local/michigan/2020/05/11/nessel-
issues-formal-opinion-guns-can-banned-capitol/3107509001/ [https://perma.cc/63GG-84VT].
52 Mauger, supra note 51.
53 Id.
151NORTHWESTERN UNIVERSITY LAW REVIEW
violence and flouting the Governor’s social-distancing orders.”54 The article
cited dozens of calls for Whitmer to be assassinated, hanged, or shot.55 In
response to the article, Facebook deleted the page of Michigan United for
Liberty,56 which had begun organizing another protest—billed “Judgement
Day”—scheduled for May 14.57 A spokesperson for the group explained the
rationale of the new protest: “We won’t be bullied and we won’t be happy
until the state is back to normal again.”58
Others had a different view of who was bullying whom. On May 12,
multiple Democratic state senators delivered speeches decrying the threats
against Governor Whitmer and calling for action to limit guns in the
Michigan State Capitol building.59 Whereas the only arrest at the April 30
protest was of a thirty-five-year-old male who was arrested for assaulting
another protester, 60 law enforcement authorities communicated their
intention to aggressively police violence, brandishing, and intimidation at
the upcoming Judgement Day protest. 61 Attorney General Dana Nessel
issued a press release asserting that “[y]ou cannot use a weapon to threaten
or intimidate someone”62 and warned that “[t]he Attorney General’s office is
prepared to prosecute actions [including brandishing] that may not have
54 Steve Neavling, Gov. Whitmer Becomes Target of Dozens of Threats on Private Facebook Groups
Ahead of Armed Rally in Lansing, DETROIT METRO TIMES (May 11, 2020, 9:38 AM), https://
www.metrotimes.com/news-hits/archives/2020/05/11/whitmer-becomes-target-of-dozens-of-threats-on-
private-facebook-groups-ahead-of-armed-rally-in-lansing [https://perma.cc/AE3K-QUJD].
55 Id.
56 Id.
57 Justin P. Hicks, Another Stay-Home Protest Planned at Michigan Capitol, MLIVE (May 12, 2020),
https://www.mlive.com/public-interest/2020/05/another-stay-home-protest-planned-at-michigan-capitol
.html [https://perma.cc/ALS8-PPHX]; Tom Perkins, Protesters Descend on Michigan Capitol but Rain
Washes Away Demonstration, GUARDIAN (May 14, 2020, 2:05 PM), https://www.theguardian.com/us-
news/2020/may/14/michigan-protest-capitol-gretchen-whitmer [https://perma.cc/S8C7-ND4Z].
58 Hicks, supra note 57.
59 Craig Mauger, Senator: Threats Are “About Spreading Blood” on Michigan Capitol Lawn,
DETROIT NEWS (May 12, 2020, 1:59 PM), https://www.detroitnews.com/story/news/local/michigan/
2020/05/12/senator-threats-about-spreading-blood-capitol-lawn/3115275001/ [https://perma.cc/AD8F-
JGZC].
60 Lois Beckett, Armed Protesters Demonstrate Against Covid-19 Lockdown at Michigan Capitol,
GUARDIAN (Apr. 30, 2020, 6:54 PM), https://www.theguardian.com/us-news/2020/apr/30/michigan-
protests-coronavirus-lockdown-armed-capitol [https://perma.cc/SXZ4-X2AD]; Mauger, supra note 38.
61 Todd Spangler, New Stay Home Protest Planned in Lansing — and Cops, Leaders Have Message
for Attendees, DETROIT FREE PRESS (May 12, 2020, 5:34 PM), https://www.freep.com/story/news/local/
michigan/2020/05/12/michigan-lansing-protest-whitmer-stay-home-order/3115967001/ [https://perma.
cc/JF93-DYJ9].
62 Carol Thompson & Kara Berg, A Key Question Before Thursday Protest at Capitol: What Does It
Mean to Brandish a Weapon?, LANSING ST. J. (May 13, 2020, 10:57 PM), https://www.lansingstate
journal.com/story/news/2020/05/13/protest-michigan-brandish-gun-firearm-stay-home-order-capitol/51
84735002/ [https://perma.cc/7KT7-5LSV].
152116:139 (2021) When Guns Threaten the Public Sphere
received the same treatment during the April 30 protest.” 63 Republican
Senate Leader Shirkey argued that anyone brandishing guns in an
intimidating or threatening way should be “properly handcuffed, properly
taken in (and) fingerprinted.”64
Despite these warnings and even though the legislature was in the midst
of debate about regulating guns in the building, on the afternoon of May 13—
one day before Judgement Day—both chambers of the Michigan legislature
adjourned until May 19. 65 Though not explained as such, commentators
noted that the adjournment seemed clearly to be a response to the threats and
protest. 66 Despite the legislature’s adjournment—and the arrival of heavy
rain and lightning—about 300 people turned out for Judgement Day.67 Even
though authorities had warned that they would more aggressively enforce
gun laws prohibiting brandishing and intimidation, the police made no
arrests and issued no citations.68
In early October 2020, the FBI arrested thirteen men in connection with
a wide-ranging plot to kidnap and possibly kill Governor Whitmer69 (and, it
later emerged, Virginia Governor Ralph Northam, much reviled by some for
his support for gun laws70). As captured in the affidavit accompanying the
63 Beth LeBlanc, Nessel: Protesters Breaking the Law Thursday Will Be Charged, DETROIT NEWS
(May 13, 2020, 2:44 PM), https://www.detroitnews.com/story/news/politics/2020/05/13/michigan-
attorney-general-nessel-capitol-protesters-breaking-law-charged/5184657002/ [https://perma.cc/HGJ6-
5X8H].
64 Spangler, supra note 61.
65
David Welch, Michigan Cancels Legislative Session to Avoid Armed Protesters, BLOOMBERG
NEWS (May 14, 2020, 10:52 AM), https://www.bloomberg.com/news/articles/2020-05-14/michigan-
cancels-legislative-session-to-avoid-armed-protesters [https://perma.cc/A6WA-TZZZ].
66 Id. (explaining that “Michigan closed down its capitol in Lansing on Thursday and canceled its
legislative session rather than face the possibility of an armed protest and death threats against Democratic
Governor Gretchen Whitmer”).
67 Francis X. Donnelly, Craig Mauger & Beth LeBlanc, Fight Erupts at Michigan Capitol Protest
Over Noose; Police Take Ax, DETROIT NEWS (May 14, 2020, 6:15 PM), https://www.detroitnews.com/
story/news/politics/2020/05/14/protesters-begin-gathering-thursday-demonstration/5186937002/ [https:/
/perma.cc/FP6Z-5QGF]; Perkins, supra note 57.
68 MSP: Ax-Wielding Man Removed from Lansing Protests, but No Citations or Arrests Made,
WXYZ DETROIT (May 14, 2020, 6:38 PM), https://www.wxyz.com/news/coronavirus/police-recover-ax-
after-altercation-at-state-capitol-during-protest [https://perma.cc/H6BB-DUPH].
69 Giulia McDonnell Nieto del Rio & Neil MacFarquhar, Virginia Governor Was Also a Possible
Target of Anti-Government Plot, F.B.I. Says, N.Y. TIMES (Oct. 18, 2020), https://www.nytimes.com/
2020/10/13/us/northam-kidnapping-whitmer.html [https://perma.cc/U8KK-EQCR]; Nicholas Bogel-
Burroughs, Shaila Dewan & Kathleen Gray, F.B.I. Says Michigan Anti-Government Group Plotted to
Kidnap Gov. Gretchen Whitmer, N.Y. TIMES (Jan. 27, 2021), https://www.nytimes.com/2020/10/08/
us/gretchen-whitmer-michigan-militia.html [https://perma.cc/6ZC3-KQG8].
70 Kayla Ruble, Laura Vozzella & Devlin Barrett, Whitmer Plotters Also Discussed Kidnapping
Virginia Gov. Ralph Northam, FBI Agent Testifies, WASH. POST (Oct. 13, 2020, 8:19 PM), https://www.
washingtonpost.com/national-security/ralph-northam-gretchen-witmer-kidnapping-plot/2020/10/13/26b
153NORTHWESTERN UNIVERSITY LAW REVIEW
criminal complaint, their language was both gendered (referring to Governor
Whitmer as a “bitch”)71 and inflected with constitutional justification.72 At
least two of the men had participated in the April 30 protest and were among
those pictured in Polehanki’s viral tweet. 73 Campaigning in Michigan,
President Trump continued to attack Governor Whitmer and joined
supporters chanting “lock her up!” with a call to “lock them all up.”74
B. “No One Has Ever Been Harmed”
No one was shot during the Michigan protests, and many protest
sympathizers suggested that without evidence of past physical harm, the state
had no legitimate interest in restricting guns in the legislature. Noting that
there were no shootings or accidental discharges at the event, one protester
said, “it’s not a gun problem, it’s a people problem.”75 Others discounted fear
as a reason for limiting guns in the Michigan State Capitol. Ashley Phibbs,
one of the organizers of the April 30 rally, said, “I don’t think that anyone
was there to really make anyone fearful. I didn’t see anything that would
have really caused fear, aside from loud noises from the people yelling. But
4e31a-0d5f-11eb-b1e8-16b59b92b36d_story.html [https://perma.cc/RP67-TFW3]. Gun rights advocates
organized a large protest in Richmond after Democrats won control of the General Assembly. Gregory S.
Schneider, Laura Vozzella, Patricia Sullivan & Michael E. Miller, Weapons, Flags, No Violence: Massive
Pro-Gun Rally in Virginia Capital, WASH. POST (Jan. 20, 2020, 5:14 PM), https://www.washingtonpost.
com/local/virginia-politics/2020/01/20/4b36852c-3baa-11ea-8872-5df698785a4e_story.html [https://
perma.cc/U97V-D443] (noting that a “homemade guillotine that had been set up on the street, inscribed
with the words: ‘The penalty for treason is death’”).
71 Complaint at 5–6, United States v. Fox, No. 1:20-mj-416 (W.D. Mich. Oct. 6, 2020) (referencing
Governor Whitmer as a “bitch”).
72 Id. at 2 (noting that conspirators “agreed to unite others in their cause and take violent action
against multiple state governments that they believe are violating the U.S. Constitution”); id. at 2–3
(reporting that the “group talked about creating a society that followed the U.S. Bill of Rights and where
they could be self-sufficient”); see also John E. Finn, Plot to Kidnap Michigan’s Governor Grew from
the Militia Movement’s Toxic Mix of Constitutional Falsehoods and Half-Truths, CONVERSATION (Oct.
12, 2020, 2:17 PM), https://theconversation.com/plot-to-kidnap-michigans-governor-grew-from-the-
militia-movements-toxic-mix-of-constitutional-falsehoods-and-half-truths-147825 [https://perma.cc/
2BX6-GVGV] (discussing beliefs of self-described militia groups, including the Wolverine Watchmen
involved in the kidnapping plot, the Proud Boys, Michigan Militia, and the Oath Keepers).
73 Vandana Rambaran, Suspects in Whitmer Plot Photographed with Long Guns at Michigan Capitol,
FOX NEWS (Oct. 9, 2020), https://www.foxnews.com/politics/2-charged-in-whitmer-kidnap-plot-photo
graphed-with-long-guns-at-state-capitol-in-april-ag-says [https://perma.cc/URB8-3EJF]; Polehanki,
supra note 41; see infra notes 97–100 and accompanying text.
74 Jonathan Martin, ‘Lock Them All Up’: Trump’s Whitmer Attack Fits a Damaging Pattern, N.Y.
TIMES, (Oct. 18, 2020), www.nytimes.com/2020/10/18/us/politics/trump-whitmer-michigan.html
[https://perma.cc/V8RL-DP4L].
75 Oosting, supra note 44; Sarah Rahal & Craig Mauger, Armed Protesters in Michigan Capitol Have
Lawmakers Questioning Policy, DETROIT NEWS (May 2, 2020), https://www.detroitnews.com/
story/news/local/michigan/2020/05/02/armed-protesters-michigan-capitol-have-lawmakers-questioning-
policy/3071928001/ [https://perma.cc/LFV9-BZ7Q].
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